VEENA BANSAL vs National Insurance Co Ltd

THE car belonging to the complainant had met with an accident on 9.12.1997 in which the driver of the car Ishwar Garg and her husband died and the complainant as also her children suffered injuries. The car was damaged in the accident in respect of which, claim was filed with OP Insurance Company for Rs. 1,60,000. According to the complainant, the claim was not settled and, as such, she approached the District Forum seeking payment of Rs. 1,60,000 with interest as also a sum of Rs. 20,000 towards harassment, inconvenience and cost of Rs. 1500.

THE District Forum found that the driving licence of the driver Ishwar Garg was valid from 16.9.1988 to 15.9.1993. The Counsel for the complainant had stated that application was given on 29.6.2000 to the Licensing Authority for issuing verification certificate with regard to the disputed licence, which shows that the driver had a valid driving licence at the time of accident. The District Forum allowed the claim to the tune of Rs. 1,59,275 with interest. This order was challenged by the Insurance Company before the State Commission.

THE State Commission found that the driving licence of the driver Ishwar Garg was valid only upto 15.9.1993, whereas the accident took place on 19.12.1997. Counsel for the Insurance Company had submitted that the complainant did not furnish copy of the driving licence of driver Ishwar Garg to the Surveyor. Subsequently, a number of letters were written to the complainant to supply the driving licence, but the complainant reported that driving licence has probably lost in the accident. Counsel for the Insurance Company had relied upon general exceptions, particularly, relating to holding of effective driving licence by the driver at the time of accident. The State Commission held that driver Ishwar Singh did not have a valid driving licence on the date of accident since his licence had already expired on 15.9.1993 and the Insurance Company was not liable to pay the amount claimed. The appeal was allowed and the complaint was dismissed. This order has been challenged by the complainant/petitioner in revision.

WE have heard Counsel appearing on both sides. Learned Counsel for the petitioner argued before us that the stand of the complainant is that the driver Ishwar Singh did have a valid driving licence and the complainant had seen and read the licence, but the complainant was not able to produce the said licence. When we asked Counsel for the petitioner as to which authority had issued the said licence, which was seen by the complainant, it was submitted that the complainant is not aware of the same. Learned Counsel for the petitioner further argued that the accident had occurred on account of fault of the other vehicle which had dashed with the car of the complainant and that no plea of contributory negligence has been taken by the Insurance Company. He, therefore, contends that the Insurance Company wrongly repudiated the claim as the driver Ishwar Singh was not in any manner responsible for the accident even if he did not hold a valid driving licence. In this connection, reliance was placed on the judgment of the Apex Court in the Case of Jitendra Kumar v. Oriental Insurance Co. Ltd. and Anr., IV (2003) SLT 497=I (2008) ACC 139 (SC)=JT 2003 (5) SC 538. However, at this stage we may point out that no such plea was ever taken by the complainant in the complaint and the argument advanced by the Counsel for the petitioner is bereft of pleadings.

LEARNED Counsel for the petitioner has also placed reliance on paras 64, 69 and 70 of the judgment of the Apex Court in National Insurance Co. Ltd. v. Swaran Singh and Ors., I (2004) SLT 345=I (2004) ACC 1 (SC)=109 (2004) DLT 304 (SC)=(2004) 3 SCC 297. In para 64, reference is made to the case of Jitendra Kumar v. Oriental Insurance Co. Ltd. and Anr. (supra) and it is stated that there may be a case where an accident takes place without there being fault on the part of the driver. In such an event, the question as to whether a driver was holding a valid licence or not would become redundant. In para 69, it has been stated that the Insurance Company is required to establish the breach by cogent evidence. In para 70, it is stated that the finding of the alleged breach must be arrived at on the basis of material available on record.

LEARNED Counsel for the petitioner then argued in the alternative that the complainant is entitled to receive claim on non-standard basis and in this connection reliance has been placed on the judgment of this Commission in New India Assurance Co. Ltd. v. Narayan Prasad Appaprasad Pathak, II (2006) CPJ 144 (NC) and the judgment of the Apex Court in Amalendu Sahu v. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC)=II (2010) SLT 672=AIR 2010 SC 2090.

ON the other hand, learned Counsel appearing on behalf of the Insurance Company has urged before us that the driver Ishwar Garg did not have a valid and effective driving licence at the time of accident as the licence of the driver was valid only upto 15.9.1993. Relying upon the judgment of the Apex Court in National Insurance Co. Ltd v. Laxmi Narain Dhut, III (2007) CPJ 13 (SC)=IV (2007) SLT 102=II (2007) ACC 28 (SC)=2007 (4) SCALE 36. It has been submitted that the judgment in Swaran Singh''s case (supra) has no application to own damage cases and is restricted to third party risks. Learned Counsel for the Insurance Company has also placed reliance on the judgment of Bhuwan Singh v. Oriental Insurance Company Ltd. and Anr., III (2009) SLT 535=II (2009) ACC 296 (SC)=2009 (3) SCALE 798 and New India Assurance Co. Ltd. v. Suresh Chandra Aggarwal, IV (2009) CPJ 14 (SC)=III (2009) ACC 895 (SC), and submitted that the judgment of the State Commission does not call for any interference.

ADMITTEDLY, the vehicle in question was being driven by driver Ishwar Garg. The complainant did not produce the driving licence as required by the Insurance Company, nor the copy of the driving licence was produced by the complainant before the Surveyor. The Insurance Company had sent several letters to the complainant to produce the driving licence, but the complainant failed to produce the same. The complainant had produced licence of the driver Ishwar Garg before the District Forum on 17.8.2008. The District Forum got it verified from the Licensing Authority who reported that the driving licence in question was valid upto 15.9.1993. The District Forum has referred to an application given by the Complainant on 29.6.2000 to the Licensing Authority for issuing verification certificate with regard to the disputed licence. In fact, the Sr. Divisional Manager of the Insurance Company had also written a letter to the Licensing Authority on 22.8.2000 for verification of the driving licence of driver Ishwar Garg and the Licensing Authority reported that the said licence was valid from 16.9.1988 to 15.9.1993. On what basis the District Forum came to the conclusion that the driver, Ishwar Garg had a valid driving licence at the time of accident is not understandable. Therefore, it established from the material on record that the driver Ishwar Garg had no valid and effective driving licence on the date of accident, namely, 9.12.1997 and on this ground the Insurance Company had rightly repudiated the claim.

LEARNED Counsel for the Insurance Company has placed reliance on the judgment of the Apex Court in Bhuwan Singh v. Oriental Insurance Company Ltd. and Anr. (supra) in which the driver of the vehicle was found to be not duly licensed at the time of accident and it was held that the insurer was not bound to reimburse in terms of the contract. It is a case arising out of the Motor Accident Claim Tribunal. In this case, the relevant portion of contract of Insurance was considered which reads as under: "Persons or class of persons entitled to drive. (A) Any person including insured: (B) PROVIDED that a person driving hold an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence: (C) PROVIDED also that the person holding an effective learner''s licence may also drive the vehicle and such a person satisfies the requirement of the Rule 3 of the Central Motor Vehicles Rules 1988. Limitation as to use Agri. Use."

IN the case before us the following clauses of contract for Insurance policy relevant are as under: Persons or class of persons entitled to drive: Any Licence holder. Any person including Insured provided that a person driving hold an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective licence may also drive the vehicle when not used for the transport of passengers at the time of the accident and that such a person satisfies the requirement of Rule 3 of Central Motor Vehicles Rules, 1989. Limitation to use- Use only for social, domestic and pleasure purpose and Insured''s own business. The Policy does not cover use for hire or reward or for organized racing, pacemaking reliability trials, speed resting, carriage of goods (other than samples) in connection with any trade or business of use for any purpose in connection with Motor Trade.

FROM the above, it is clear that as per this contract, the person or classes of person to drive are specified thereon and the person driving the vehicle must hold an effective driving licence at the time of accident and not disqualified from holding or obtaining such a licence. At this stage, we may refer to the judgment of Apex Court in New India Assurance Co. Ltd v. Suresh Chandra Aqgarwal (supra). In the case before the Apex Court the driving licence of the driver had expired on 25.10.1991 i.e. four months prior to the accident and it was renewed subsequently from 23.3.1992. The accident had taken place on 29.2.1992. The Apex Court after examining the relevant provisions of the Motor Vehicles Act including Section 3(i), Section 5 and Section 15 of the Motor Vehicles Act held that the driver did not have a valid Driving licence on the date of accident. It has been pointed out by the Apex Court that as a matter of fact, in view of the clear mandate of Section 3 of the Act, the driver was not even permitted to drive the insured vehicle in a public place. Besides this, the claimant not only committed breach of the terms of the policy, he also violated the provisions of Section 5 of the Act by entrusting the vehicle to a person who did not hold a valid licence on the date of the accident. It was further held that the expired licence can be renewed within 30 days from the date of its expiry in terms of Section 15 of the Act and if it is not renewed with the said period, the licence cannot be renewed with effect from the date of its expiry. It was, therefore, also held that between the period 26.10.1991 to 22.3.1992, the driver had no valid and effective driving licence as contemplated in Section 3 of the Act and Section 19 of the M.V. Act does not come to the aid of the claimant. The claim put up, therefore, was rejected. The judgment of the Apex Court referred to above applies on all fours to the case under consideration.

IT may also be pointed out that before the Apex Court in the said case it was urged that no order disqualifying the driver from holding driving licence had been passed in terms of Section 19 of the Motor Vehicles Act, 1988 and it was urged that since the driver was holding a valid driving licence and was not disqualified from holding an effective driving licence, the stipulation in the aforesaid condition, namely Condition No. 5 had not been infringed. The said condition is as under: "5. Persons or classes of persons entitled to drive (a) The insured (b) Any other person who is driving on the insured''s order or with his permission: Provided that the person driving holds or had held and has not been disqualified from holding an effective driving licence with all the required endorsements thereon as per the Motor Vehicles Act and the Rules made thereunder for the time being in force to drive the category of motor vehicle insured hereunder."

THE Apex Court held that the argument advanced was stated to be rejected and it was held that admittedly having failed to apply for renewal of the licence within 30 days from the date of its expiry in terms of Section 15 of the Act, the Licence could not be renewed w.e.f. the date of its expiry and, therefore, between the period 26.10.1991 to 22.3.1992, the deceased driver had no valid and effective driving licence as contemplated under Section 3 of the Act. Accordingly, the Apex Court held that Section 19 of the Act did not come to the aid of the claimant. The judgment of the Apex Court applies on all fours to the case under consideration. The case before us is not only breach of condition and policy, but it is a case of breach of the provisions of the Motor Vehicles Act including Section 3 of the said Act. The Apex Court in Amalendu Sahu v. Oriental Insurance Co. Ltd. (supra) was dealing with the case, where the breach related to limitation as to use of the vehicle inasmuch as the vehicle was taken on hire by person which had subsequently met with an accident during subsistence of policy. It was in the facts of the said case that reference was made to guidelines on submission on non-standard basis. Even the judgment of this Commission in New India Assurance Company Ltd. v. Narayan Prasad Appaprasad Pathak (supra) had been referred in connection with the settling of non-standard claims. In the said case, the driver was holding a driving licence to drive LMV, but he did not possess licence to drive Maxi-cab and the said fact was taken into consideration while settling the claim on non-standard basis. In the case before us, no case for grant of compensation on non-standard basis is made out nor the same can be awarded in the facts and circumstances of the case.

IN view of the aforesaid discussion, we are of the opinion that the findings of the State Commission do not call for interference and the revision is hereby dismissed with no order as to cost. Revision Petition dismissed.